Maine must no longer enforce a part of its anti-discrimination law that requires religious institutions that accept public school tuition funds to allow all forms of religious expression, a federal judge said this week.

It was the only part of the state’s Human Rights Act that a federal appeals court found to be an issue. The court recently issued a decision on a challenge to the law by two private religious schools. On all other components challenged by the schools, the judges found Maine’s law to be sound.

Maine had long excluded religious schools from its policy that allows public money to be used for private school tuition if students have no local public school options.

But in 2022, the U.S. Supreme Court struck down that ban, and the state Legislature amended the Human Rights Act to require all schools receiving public money to follow certain nondiscriminatory hiring and admission practices. That included allowing students to express gender identities different from those assigned at birth, and permitting them to practice a different religion than the school’s.

At the time of the decision, Maine had just one religious school that applied and was approved to receive public tuition under the law: Cheverus High School, a co-educational Jesuit high school in Portland.

Two religious high schools — St. Dominic Academy in Auburn and Crosspoint Church, which operates Bangor Christian School — sued Maine’s education commissioner in 2023 over the changes. A federal judge denied their requests, but the schools appealed to the 1st U.S. Circuit Court of Appeals, which heard oral arguments 18 months ago.

The appeals court issued a decision earlier this month mostly upholding the lower court ruling, but found the schools were likely to prevail on one specific argument.

It concerns what the appeals court termed the Religious Expression Rule, a part of the Human Rights Act added in 2021 that says, “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing. “

In the 1st Circuit’s decision, Judge William Kayatta Jr. said that language actually infringes on religious freedom by requiring a religious institution to allow all expression from any religion.

“Should St. Dominic accept tuition-assistance funds, the Religious Expression Rule would
clearly force St. Dominic to allow non-Catholic religious proselytizing unless it barred all forms of religious expression,” the court wrote.

Requiring a school to allow all religious expression, Kayatta wrote, might compel a Catholic school to permit religious recitations like the Hare Krishna mantra in the middle of the Lord’s Prayer, and said enforcement of the rule would, “inevitably interfere with a religious school’s ability to foster an expressive environment consistent with its religious mission.”

He requested that a lower court issue a permanent injunction barring Maine from enforcing that line of the law, which U.S. District Court Judge John Woodcock did this week.

A spokesperson for the Office of the Attorney General, which represented the state officials in this case, declined to comment.

The director of the Human Rights Commission, the quasi-state agency responsible for enforcement of the law, deferred to the attorney general. A spokesperson for the Department of Education did not respond to questions about the order or the process going forward.

Crosspoint said earlier this month that it would likely appeal the 1st Circuit’s decision to the U.S. Supreme Court, but didn’t object to the injunction.